Citation Nr: 1041023
Decision Date: 11/01/10 Archive Date: 11/12/10
DOCKET NO. 07-09 160 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for residuals of a vasectomy.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. Cramp, Counsel
INTRODUCTION
Appellant (the Veteran) had active service from September 1993 to
February 2005, with additional unverified periods of ACDUTRA or
INACDUTRA from February 2005 to February 2006.
This appeal comes before the Board of Veterans' Appeals (Board)
from a November 2006 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
In December 2009, the Board remanded this appeal for additional
evidentiary development. It has since been returned to the Board
for further appellate action.
The appeal is again REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Board remanded this claim in December 2009 to obtain a VA
examination and opinion regarding the nature and etiology of any
vasectomy residuals, and to obtain records establishing the
Veteran's periods of service with the Air Force Reserves.
However, it appears that some of the Board's instructions were
not adequately completed and another remand is necessary.
Specifically, the Board instructed the agency of original
jurisdiction (AOJ) to verify any periods of active service,
ACDUTRA or INACDUTRA from February 2005 to February 2006, and
obtain and associate with the claim file service treatment
records associated with those periods. However, it would appear
that the only development accomplished regarding this instruction
was to send a letter to the Veteran asking him to submit records
in his possession. There is no indication or assertion on the
part of the AOJ that it contacted anyone other than the Veteran
to verify his service. Moreover, while a review of the claims
file does indicate that the RO requested the Veteran's service
treatment records from the National Personnel Records Center
(NPRC) and Air Reserve Personnel Center, and certified that such
records were not available, it does not appear that his service
personnel records were ever requested or sent. The service
treatment records would not be expected to contain information
regarding periods of ACDUTRA or INACDUTRA, however the personnel
records might contain such information. The NPRC Internet site
indicates that service personnel records are stored separately
from service treatment records, and that the request must specify
which records are needed.
VA will make as many requests as are necessary to obtain relevant
records from a Federal department or agency. VA will end its
efforts to obtain records from a Federal department or agency
only if VA concludes that the records sought do not exist or that
further efforts to obtain those records would be futile. Cases
in which VA may conclude that no further efforts are required
include those in which the Federal department or agency advises
VA that the requested records do not exist or the custodian does
not have them. 38 C.F.R. § 3.159(c)(2) (2010).
As no request for personnel records was made, it cannot be
concluded that they do not exist.
The United States Court of Appeals for Veterans Claims has held
that AOJ compliance with a remand is not discretionary, and that
if the AOJ fails to comply with the terms of a remand, another
remand for corrective action is required. Stegall v. West, 11
Vet. App. 268 (1998).
Regarding the examination, the record indicates that the Veteran
failed to appear for an examination scheduled in March 2010.
However, the Veteran submitted a letter in August 2010 stating
that he had actually canceled the examination prior to the
scheduled date due to a conflict, and that he therefore did not
fail to appear. He requested another opportunity to appear for
the examination. On remand, the Veteran should be afforded
another opportunity to report for an examination.
Accordingly, the case is REMANDED for the following action:
1. Contact the National Personnel Records
Center, the Air Force, and any other
appropriate sources to verify all of the
Veteran's actual periods of ACDUTRA and
INACDUTRA in the Air Force Reserves. If any
additional periods of active service are
confirmed, the RO should obtain and
associated with the claim file any related
service medical treatment records. Continue
efforts to procure the relevant records until
either the records are received, or until
specific information is received that the
records sought do not exist or that further
efforts to obtain them would be futile.
2. Schedule a VA examination to determine if
the appellant has any disability from
residuals from his vasectomy in 2002. All
identified residuals should be identified.
If any residuals are found, the examiner
should opine whether it is more likely than
not (i.e., probability greater than 50
percent), at least as likely as not (i.e.,
probability of 50 percent), or less likely
than not (i.e., probability less than 50
percent) that any present disability was
caused by the vasectomy of 2002.
The examiner should specifically opine as to
whether any diagnosed disability to include,
the appellant's currently diagnosed
epididymitis, the appellant's groin pain,
and/or the reflux of urine into the
ejaculatory ducts down into the vas are more
likely than not (i.e., probability greater
than 50 percent), at least as likely as not
(i.e., probability of 50 percent), or less
likely than not (i.e., probability less than
50 percent) caused by the vasectomy of 2002.
A complete rationale for all opinions
rendered must be provided. The claim folder
should be made available to the examiner.
3. Readjudicate the remanded claim. If the
benefit sought on appeal is not granted to
the Veteran's satisfaction, he and his
representative should be provided a
supplemental statement of the case and an
appropriate period of time for response. The
case should then be returned to the Board for
further consideration, if otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2010).